Judge bars Pentagon official from Guantanamo prosecution

Miami HeraldMay 10, 2008 

WASHINGTON — In a rebuke, a military judge has disqualified a key Pentagon general from any role overseeing the Guantánamo trial of Osama bin Laden's driver, saying he doubted the general's impartiality in the case.

The judge, Navy Capt. Keith Allred, ordered the Pentagon's general counsel to assign a new official to oversee the trial in place of Air Force Brig. Gen. Thomas W.Hartmann, the Defense Department's legal adviser for military commissions.

The decision is a key one. In addition to overseeing the prosecution, Hartmann also had the power to decide how much would be spent on defense experts, travel and staff that might be need by Hamdan's four-attorney legal team, including a staff psychiatrist.

Allred issued the 13-page ruling Friday, a little more than a week after lawyers for the driver, Salim Ahmed Hamdan, 36, of Yemen, called witnesses to testify that during nearly a year as legal adviser Hartmann had pressured for swifter, more numerous prosecutions at the commissions.

Hamdan's trial is presently slated to open June 2 as the first full U.S. war crimes tribunal since World War II. Whether that schedule still holds is uncertain.

Allred wrote that he found ''substantial doubts'' about Hartmann's independence from Hamdan's prosecutors, in part ''based on the length and intensity of the Legal Advisor's involvement with the prosecution in general, as well the impact of his actions'' in Hamdan's case.

The driver, the Navy captain wrote, should be assured "fair and objective advice to which he is entitled during the balance of this case.''

Hamdan's lawyers had asked the judge to go further, and dismiss the case. Allred did not.

''It's a pretty powerful repudiation of the role that he [Hartmann] sought to play in the last 10 months,'' said Hamdan defense attorney Andrea Prasow, a civilian member of the team on the Pentagon payroll, who was provided with a copy of the decision, but prohibited from releasing it.

Among other items, the judge found that Hartmann was not ''a neutral and detached adviser,'' she said.

Hartmann had succeeded Air Force Brig. Gen. Thomas L. Hemingway, who had a more soft-spoken, low-key leadership style, and commented sparingly to the public in the role of a legal advisor who analyzed cases for senior leadership.

In contrast, Hartmann was a more aggressive player.

During hearings at Guantánamo, he would frequently telephone the base from his Pentagon office, offering a steady steam of commentary and instructions to prosecutors, defense lawyers, aides, clerks and, in some instances, reporters.

No detail seemed too small or too large — from flight schedules and who would sleep in tents versus trailers to selection of which of the 270 or so detainees would face trial as war criminals.

He has also been, increasingly, the most public face for the process, using the Pentagon podium to announce charges. Before Hartmann, prosecutions were announced with releases.

In his ruling, Allred also ordered the Defense Department's General Counsel, currently Dan Dell'orto, to make sure that Hamdan's trial prosecutors suffer no ''adverse consequence'' or "professional embarrassment.''

Testimony last week indicated the Hamdan prosecutors had complained through Pentagon channels about Hartmann's meddling.

The timing of Allred's decision is significant: It comes just weeks after Hartmann sent to the civilian Pentagon official who oversees Guantanamo prosecutions, known as the "convening authority," his recommendation on how to proceed with complex death-penalty prosecutions of six alleged al Qaida conspirators in the Sept. 11, 2001, attacks on the Pentagon and World Trade Center. Chief among the accused is reputed 9/11 mastermind Khalid Sheik Mohammed.

In light of Allred's ruling, military defense attorneys predicted more challenges of the independence of the military commissions.

Hamdan's attorneys took an earlier commissions format to the U.S. Supreme Court and won a ruling that President Bush exceeded his authority in setting it up; Congress has since authorized the format, with some modifications.

Hamdan faces life in prison for allegedly providing material support for terror and being an al Qaeda co-conspirator; prosecutors say while he may not have known or plotted al Qaida attacks, he should be found guilty for driving in al Qaeda leader Osama bin Laden's motor pool and serving as his sometime bodyguard.

U.S.-allied forces captured Hamdan, a father of two with a fourth-grade education, in November 2001 in southern Afghanistan, allegedly with two surface-to-air missiles in his car — driving toward the Battle for Kandahar.

A Pentagon spokesman, Navy Cmdr. Jeffrey Gordon, declined to discuss the ruling, saying 'Defense Department officials' were reviewing it. He did not specify who was reviewing it, although typically it would be the job of the legal adviser, meaning Hartmann.

Calls to Hartmann's staff also went unanswered.

The ruling came a week after Hamdan's Navy lawyer called the former chief military commissions prosecutor as a defense witness in a motion arguing ''unlawful command influence'' — a grave accusation in military circles.

The ex-prosecutor, Air Force Col. Morris Davis, testified that he believed Hamdan was a war criminal, but that he resigned his post because Hartmann had pressured prosecutors to rush ahead with other cases even before evidence was declassified, meaning they would require secret sessions and secret evidence.

Davis testified that he resigned in October after losing a power struggle to Hartmann over the independence of his office, and feared cases would be brought with from rough interrogations. The CIA has confirmed that it had subjected three Guantánamo detainees to waterboarding — a technique that simulates drowning and that has long been recognized internationally as torture — in secret custody elsewhere.

Moreover, the deputy defense counsel, Mike Berrigan, testified that Hartmann had not given military attorneys assigned to defend suspected terrorists enough money or staff to handle secret evidence.

Hartmann has been an outspoken advocate of the special war-on-terror court, defending the process as granting alleged terrorists unprecedented rights akin to U.S. service members at traditional courts martial.

His opponents have argued that he has not served as an independent intermediary at the war court, and has acted as proxy prosecutor by having attorneys in his office, rather than the prosecutor's staff, prepare charge sheets against six Guantánamo captives accused in the 9/11 conspiracy.

In the latest example of Hartmann's hurry-up leadership style, his staff brought on-line a $12 million ''expeditionary'' courtroom on Wednesday — only to have the audio, video, then electrical systems fail during arraignment of an alleged al Qaida propagandist, Ali Hamza al Bahlul

The judge in that case, Army Col. Peter E. Brownback III, continued with the formal read of charges in a dimly lit ostensibly state-of-the-art court, with guards surrounding the accused who had sat passively throughout the morning's glitch-riddled proceedings.

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